NORMAN is a 19-year-old high school senior and a legal permanent resident for 4 years. One evening, he and his friends decided to go on a “dare,” and his friends dared him to go inside a Target store and “pick up” a video game and a packet of gum. He was charged with, and pled guilty to, theft. He was convicted and granted three years probation with no jail time.
Mitchell, a permanent resident for 6 years, is a freshman in college and has decided to join a fraternity. During pledge-week, one of his tasks was to wash the cars of the senior frat brothers, and deliver each car to their respective owners. While driving one of the cars, he inadvertently ran a red light and was pulled over for a traffic stop. The cop had a police dog with him, and the police dog was alerted for the scent of marijuana. Upon frisking him, the police found a small plastic of marijuana in his front pocket. Further investigation showed that Mitchell had a prior conviction three years ago for possession of stolen property (a wallet), for which he got sentenced to 10 days and three years probation. This time, he was only charged with and pled guilty to possession of marijuana.
Both Norman and Mitchell, being still permanent residents and not yet United States citizens, are subject to removal (deportation) for their said convictions. However, they may be eligible for discretionary relief.
Under the Immigration and Nationality Act (INA) § 212(a), “any alien convicted of acts which constitute the essential elements of a crime involving moral turpitude… [is inadmissible].” Likewise, under § 237(a), “any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of a criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.”
Once an alien in proceedings is found to be removable or inadmissible, s/he, if eligible, may request one or more types of discretionary relief. The alien has the burden of proving that s/he is eligible for relief under the law, and usually that s/he deserves such relief as an exercise of discretion.
Waiver of Inadmissibility. Section 212(h) of the INA provides that the Attorney General may, in his discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana). The 212(h) waiver provides that certain grounds of inadmissibility may be waived in the case of an alien who demonstrates that: 1) the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of statues; 2) the admission would not be contrary to the national welfare, safety, or security of the US; and 3) the alien has been rehabilitated. INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse or child.
Cancellation of Removal. INA §240A relief of cancellation of removal is available to qualifying lawful permanent residents and non-permanent residents. For lawful permanent residents, cancellation of removal may be granted if the alien (i) has been a lawful permanent resident for at least 5 years; (ii) has continuously resided in the United States for at least 7 years after having been lawfully admitted (however, the commission or conviction of an offense stops the clock and tolls the alien’s residence period); and (iii) has not been convicted of an “aggravated felony”. Cancellation of removal for non-permanent residents may be granted if the alien: (i) has been continuously present for at least 10 years; (ii) has been a person of “good moral character” during that time; (iii) has not been convicted of an offense that would make him or her removable; and (iv) demonstrates that removal would result in exceptional and “extremely unusual hardship” to his or her immediate family members (limited to the alien’s spouse, parent, or child) who are either US citizens or lawful permanent residents.
Norman and Mitchell need to consult with an immigration attorney to find out whether they may be entitled to discretionary relief from removal.
***
Atty. Aurora Vega is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding its regular free legal clinic at the Max’s Restaurant in Vallejo, California on September 27, 2010. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; [email protected].
